# The Vice Chancellor, Utkal University and Others v. S. K. G'wsh and Ot'LtTs. Bose]

- **Citation:** [1954] 1 S.C.R. 883
- **Court:** Supreme Court of India
- **Decided:** 1951-08-17
- **Case number:** Civil Appeal No. 7 of 1952
- **Bench:** Mehr Chand Mahajan. C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-vice-chancellor-utkal-university-and-others-v-s-k-g-wsh-and-ot-ltts-bose-279
- **Pages:** 10

## Headnote

MuKHERJEA,
S. R. DAs, VrVIAN
BosE and GHULAM
HASAN JJ.]
Constitution of
India, art.
226-Mandamus
petition-High
Court-Whether can
constitute itself as court of
appeal-Resolu~
ti<>ns passed by
University
Syndicate-Validity
of-Notice
of
meeting issued to all-T¥ant
of due notice
waived-Substantial
compliance with spirit of law.
In the present case there were two meetings of the University
Syndicate, consisting of twelve members.
Proper notices of both
meetings were issued to all the members but one member did not
attend one meeting and another n1e111ber did not attend the other
·meeting. 1'he defect \Vas
that the subject matter of the present
·case was not included in the agenda of either meeting but one of
the items in the agenda of both the notices was "other matters_,
if any."
The subject matter consisted of leakage of examination
papers and the cancellation of results.
~fhose present
passed
the
resolution on both occasions unanimously.
The High Court held
that want of notice in
the two cases invalidated the resolutions
!954
Coovetjee
B. Bharucha
v.
The Excise Commissioner and the
Chief Commis~
sioner, Ajmer
and Others.
Mahajan C . .].
1951
Jariuary 15.
1954
The Vice Chancellor, Utkal
University
and Others.
v.
S. K. G'wsh
and Ot'LtTs.
Bose].
884
SUPREME COURT REPORTS
[1954)
and issued a 1nandan1us directing the syndicate
to take steps
for
the publication of the results :
Held, that \vant of due notice can be \vaived in given circum~
stances.
In the present case the two absentees did in fact
attend
one or other of the meetings and expressed their views, not individually but as members of a meeting which was considering the
n1atter and there was unanimity on both occasions.
The substance
is more important than the form and if there is substantial compliance \Vith the spirit and substance of
the law, an unessential
defect in form shpuld not be allowed to defeat what
is otherwise
a proper and valid resolution.
As in the present case, there was
actual appearance without objection at meetings properly convened
and there was complete unanimity on bOth occasions the
two
resolutions were not invalid because whatever
may
be thought
about each taken separately, the defects,
if any, are cured when
two are read together and regarded as a whole.
Held further, that in a 1nandamus petition
the High
Court
cannot constitute itself into a court of appeal from the authority
against which
appeal is
sought.
It is not the function of courts
of law to substitute their wisdom and discretion for that
of the
persons to \Vhose judgment the matter in
question is entrusted by
the law.
1'he present was not the sort of case in which
a mandamus
ought to issue.
Radha Kishan faikishan v. Municipal
Committee,
Khandwa
(61 I.A. 125) and Young v. Ladies Imperial Club (89 L.J.K.B. 563)
referred to.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 7 of 1952.
Appeal by special leave from the Judgment and
Order, dated 9th and 17th August, 1951, of the High
Court of Judicature at Orissa in Miscellaneous Judicial
Case No. 80 of 1951, and Order dated the 20th August,,
1951, in Supreme Court Appeal No. 15 of 1951, on the.
file of the said High Court.
Dr. Bakshi Tek Chand (G. C. Mathur and H. Mohapatra, with him) for the appellants.
N. C. Chatterjee
( V. S. Sawhney and R. Patnaik,
with
him)
for
respondents
Nos.
1-8, 10-16,
18-23
and 25-34.
1954. January 15. The Judgment of the Court was
delivered by
BosE J.-This appeal
arises out of a petition made
by certain students of the Utkal University of Orissa
S.C.R.
SUPREME COURT REPORTS
885
to the
High Court of Orissa
at
Cuttack seeking a
mandamus
under
article
226
of
the
Constitution
against
the
Vice-Chancellor
of
the University and
certain other persons connected with it.
In view of an undertaking given before us on behalf of
the University, the questions at issue lose most of their
practical importance
and only two questions of principle
remain.
Because
of this we do not intend to
examine the matters which arise at any length.
T

## Text

S.C.R.
SUPREME COURT REPORTS
883
conducted themselves not in accordap.ce with law or if
they have acted
in excess of their jurisdiction. The
same is
the answer to the petitioner's next contention
that the sale
could not
be confirmed by the Minister
and
that
under the rules it was only the Chief Comm1ss10ner who was
authorised to confirm it. The
point of
discrimination
was
not
seriously
argued
before us.
For the reasons given above we see no validity in
this application
and
we accordingly dismiss
it with
costs.
Petition dismissed.
Agent for the peut10ner: S. D. Sekhri.
Agent for the respondent: G. H. Rajadhyaksha.
THE VICE-CHANCELLOR, UTKAL
UNIVERSITY AND OTHERS
fl.
S. K. GHOSH AND OTHERS.
[MEHR
CHAND
MAHAJAN. C.J.,
MuKHERJEA,
S. R. DAs, VrVIAN
BosE and GHULAM
HASAN JJ.]
Constitution of
India, art.
226-Mandamus
petition-High
Court-Whether can
constitute itself as court of
appeal-Resolu~
ti<>ns passed by
University
Syndicate-Validity
of-Notice
of
meeting issued to all-T¥ant
of due notice
waived-Substantial
compliance with spirit of law.
In the present case there were two meetings of the University
Syndicate, consisting of twelve members.
Proper notices of both
meetings were issued to all the members but one member did not
attend one meeting and another n1e111ber did not attend the other
·meeting. 1'he defect \Vas
that the subject matter of the present
·case was not included in the agenda of either meeting but one of
the items in the agenda of both the notices was "other matters_,
if any."
The subject matter consisted of leakage of examination
papers and the cancellation of results.
~fhose present
passed
the
resolution on both occasions unanimously.
The High Court held
that want of notice in
the two cases invalidated the resolutions
!954
Coovetjee
B. Bharucha
v.
The Excise Commissioner and the
Chief Commis~
sioner, Ajmer
and Others.
Mahajan C . .].
1951
Jariuary 15.
1954
The Vice Chancellor, Utkal
University
and Others.
v.
S. K. G'wsh
and Ot'LtTs.
Bose].
884
SUPREME COURT REPORTS
[1954)
and issued a 1nandan1us directing the syndicate
to take steps
for
the publication of the results :
Held, that \vant of due notice can be \vaived in given circum~
stances.
In the present case the two absentees did in fact
attend
one or other of the meetings and expressed their views, not individually but as members of a meeting which was considering the
n1atter and there was unanimity on both occasions.
The substance
is more important than the form and if there is substantial compliance \Vith the spirit and substance of
the law, an unessential
defect in form shpuld not be allowed to defeat what
is otherwise
a proper and valid resolution.
As in the present case, there was
actual appearance without objection at meetings properly convened
and there was complete unanimity on bOth occasions the
two
resolutions were not invalid because whatever
may
be thought
about each taken separately, the defects,
if any, are cured when
two are read together and regarded as a whole.
Held further, that in a 1nandamus petition
the High
Court
cannot constitute itself into a court of appeal from the authority
against which
appeal is
sought.
It is not the function of courts
of law to substitute their wisdom and discretion for that
of the
persons to \Vhose judgment the matter in
question is entrusted by
the law.
1'he present was not the sort of case in which
a mandamus
ought to issue.
Radha Kishan faikishan v. Municipal
Committee,
Khandwa
(61 I.A. 125) and Young v. Ladies Imperial Club (89 L.J.K.B. 563)
referred to.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 7 of 1952.
Appeal by special leave from the Judgment and
Order, dated 9th and 17th August, 1951, of the High
Court of Judicature at Orissa in Miscellaneous Judicial
Case No. 80 of 1951, and Order dated the 20th August,,
1951, in Supreme Court Appeal No. 15 of 1951, on the.
file of the said High Court.
Dr. Bakshi Tek Chand (G. C. Mathur and H. Mohapatra, with him) for the appellants.
N. C. Chatterjee
( V. S. Sawhney and R. Patnaik,
with
him)
for
respondents
Nos.
1-8, 10-16,
18-23
and 25-34.
1954. January 15. The Judgment of the Court was
delivered by
BosE J.-This appeal
arises out of a petition made
by certain students of the Utkal University of Orissa
S.C.R.
SUPREME COURT REPORTS
885
to the
High Court of Orissa
at
Cuttack seeking a
mandamus
under
article
226
of
the
Constitution
against
the
Vice-Chancellor
of
the University and
certain other persons connected with it.
In view of an undertaking given before us on behalf of
the University, the questions at issue lose most of their
practical importance
and only two questions of principle
remain.
Because
of this we do not intend to
examine the matters which arise at any length.
The facts are as follows.
The first M.B.B.S.
Examination of the University included Anatomy as one
of its subjects. This examination
was
divided
into
three
parts.
The theoretical
portion,
which
was
written, was fixed for the 9th and 10th of April, 1951.
The practical was fixed for the 19th and the viva t•oce
for the 20th.
At 7 o'clock on the morning of the 9th, before the
examination began, a member of the Senate was to!<!
that there had been a leakage of the questions
and
he was given a paper which was entitled "hints". He
at once contacted three other members of the Scm,te
and handed over copies of these "hints" to them. The
three
members
were Mr.
Justice
Jagannadhaclas,
Mr. Pradhan, the Director of Public Instruction in
Orissa,
and
Mr. Lingaraj Misra, the
Minister tor
Education.
The Vice-Chancellor was not inform,·cl •t
the
time
and
no further
action
was taken. The
e:famination
proceeded
as
scheduled on the
chtes
fixed.
The Vice-Chancellor was informed on the 19th. He
at once asked Lt. Col. Papatla, the Principal of the
Medical
College,
to look into the matter.
This was
done
and Lt. Col. Papatla submitted a report on the
20th.
He
compared the
"hints" with the question
paper
and considered that
the
similarity between
them justified
the
conclusion that there had been a
leakage.
It so happened that an ordinary meeting of the
University Syndicate had been called for the 21st to
195-f
Thi Vi..-Chan-.
"/lo<, Utl:al
U•iveisity.
and Ol.-i.lfs.
v:J
S. 1'. Ulw&h
and mhm. ·
Bose J ..
t934
T1" I' ;,.:er.a.-
cell", Ul/;Jll
U•ioMsily
and OI ns.
••
S. I:. G "''h
ani '!)tlttrs.
886
SUPREME COURT REPORTS
[1954]
consider certain
other matters.
This question was
not on the agenda but
the last
item was,
"other
matters, if any."
The Vice-Chancellor presided aml he told the members present what had happen.ed.
He had already
prepared
a
note about this on the 21st before the
meeting began.
After setting out the facts the note
concluded-
"! request the syndicate to discuss the matter as
it
is an important and urgent one before taking up the
publication of the M.B.B.S. results which are also
ready, though the subject is not in the agenda."
The report of the Board of Examiners setting out
the results of the examination was
received
on the
morning of the 21st some time before the meeting. It
showed that thirty seven students had appeared for
the examination in question.
Of these, twenty seven
passed and ten failed in the written examination and
the same ten, plus one other (making eleven), failed in
the practical and viva voce tests. In the result, eleven of
the thirty seven failed and twenty six pasml. The petition for mandamus was made by the twenty six who had
passed and eight who failed: thirty four in all.
The syndicate heard Lt. Col. Papatla at length and
also
examined
three
other
persons,
namely,
Mr.
Bhairab Chandra Mahanty, who first gave the information,
Dr. R. K. Mahanty,
the internal examiner foi
the M.B.B.S.
and
Dr. S. M.
Banerjee, President of
the
Board
of Examiners.
(Two
members of the
syndicate were experts
in Anatomy, namely Lt. Col.
Papatla and Dr.
S. N. Acharya, the Civil Surgeon).
After carefully considering the question for some six
hours. the members present passed
the
following
resolution :
"That after enquiry, the syndicate is satisfied that
there has been leakage of questions in Anatomy and
that the result in Anatomy examination be cancelled
and that another ex"mination in the subject be held
commencing from the 7th May, 1951."
:S.C.R.
SUPREME COURT REPORTS
887
The svndicate consists
of
twelve
members.
Of
these, all but one Mr. Pradhan, the Director of Public
Instruction,
were
present
at
the meeting.
Those
present
passed
the
resolution
unanimously. It is
admitted that Mr. Pradhan was not told that this ~as
one
of the matters which would be considered at the
meeting.
This
is
one
of the grounds on which the
validity of this resolution is attacked.
The successful candidates entered a protest against
the resolution and asked the syndicate to reconsider
its
decision.
This was on the 26th.
The Vice-Chancellor had
already called
another meeting of the
syndicate
for
the 28th
to consider
other matters.
·Once again, this was not placed on the agenda but the
Vice-Chancellor brought it
up suo moto as before.
Again, eleven of the twelve were present but this time
the absentee was Dr. M. Mansinha who had approved
·of the previous resolution.
The former absentee, Mr.
Pradhan, was present at this meeting.
For a second
time
the decision was unanimous and all eleven refus-
. ed to review the former resolution.
It is
admitted
that Dr. Mansinha who was not there did not know
that this, question would be consid.:red again.
The learned High Court Judges held that the want
·of notice in the two cases invalidated the resolutions.
·They examined
the facts for themselves and. concluded
that even if the evidence is
sufficient to indicate a
possibility
of some
leakage, there was
"no
justifica-
'tion
for the syndicate to pass such a drastic resolution
in
the
absence
of proof
of the quantum and the
amplitude of leakage."
They held that the syndicate
had acted
unreasonably
and without due case. They
therefore issued a mandamus directing the
syndicate
to take steps for the publication of the results.
The Vice-Chancellor and the others appeal.
The right of the syndicate to control the examinations, to scrutinise the results, to invalidate an examination for p:-oper reasons and to order a re-examinaction, when necessary, was not disputed.
In view of the
mndertaking given the only points argued were the
•
1954
Tlit Vfre·C~ari ..
ctllor, Utkal
University
and Others.
v.
S. K. C.'1osh
aiid Others..
·nose],
1954
·r;ie Vice-Chancellor, Utkal
University
and Others.
v·
S. K. Ghosh
and Ol/1ers.
Bose].
888
SUPREME COURT REPORTS
11954}
two which
the
High Court decided against
the
University.
Several English authorities were cited about the
effect
of
an omission
to give notice
to even one
member of a body entitled to receive it, in particular
a decisiqn
of
the Privy Council
in Radha Krishan
Jaikishan v. Municipal Committee, KhandflJa(' ). We do·
not think it nece:>sary to examine the general principle
at any length because, in our opinion, this case is.
governed by its own facts.
It may well be that when
there
is
a statutory requirement about
notice
the
provisions
of the statute
cannot be evaded or ignored_
It may also be, though we do not stop to enquire
whether it is that when the constitution of a nonstatutory
body
requires notice to be given, then als0<
there cannot be any relaxation of the rule.
The reason for the stricter rule laid down in the·
cases cited
before us is that though an incorporated
body like an University is a legal entity
it has neither
a living mind nor voice. It can only express its will in·
a formal way by a formal resolution
and
so can onlyact in its corporate capacity by resolutions properly
considered, carried and duly recorded in the manner
laid down by its constitution.
If its rules require such
resolutions to be moved
and passed in a meeting called
for
the
purpose,
then every member of the body
entitled to take part in the meeting must be given.
notice so that he can attend and express his views.
Individual assents given separately cannot be regarded
as equivalent to the assent of a meeting because
the
incorporated
body is different from the persons of
which it is composed.
Hence, an omission to give
proper notice even to a single member in these circumstances would invalidate the meeting and that in turn
would invalidate resolutions which purport to have
been passed at it. But this is only when such inflexible·
rigidity is imposed
by the
incorporating constitution.
The position is different when, either by custom or by
the nature of the body or by its constitution and rules"
greater latitude and flexibility
are permissible. Each:
(1) 61 I.A. 125.
S.C.R.
SUPREME COURT REPORTS
889
case must be governed by its own facts and no universal rule can be laid down; also it may well be that in
the same body certain things,
such as routine matters,
can be disposed of more easily and with less formality
than others.
It all depends on the nature of the body
and its rules.
In the present case, there were not one but two
meetmgs.
Proper notices of both meetings were issued
to all the members including the two absentees. The
only defect is that the matter we are concerned with
was
not included in the agenda of either meeting. We
need
not decide
here whether this must always be
done-there are English cases which indicate that that
is not always necessary, see for example T lie King v.
Pulsford( '),La Compagnie De Mayville v. Whitley(')
and Parker and Cooper Ltd· v. Reading(•); also, in the
present case
one of the items in the agenda of both
notices was "other matters, if any." But it is not
necessary to
go into that because in
this case
these
members did in fact attend
one or
other of the
meetings and expressed
their views, not individually,
but
as members of a meeting which was considering
the matter;
and
there was unanimity on both occasions.
Even
on the stricter view
taken in the cases
relied on by counsel it is pointed out that want of due
notice can be waived in given circumstances. Thus, if
a person who was not noticed appears at the meeting
and waives the irregularity, the defect is cured; so also
when a person is too far away to be reached in time to
enable him to communicate with the Committee before
the meeting:
the sending of a notice
is then excused.
See
Radlza Kislzan Jaikislzan v. Municipal
Committee,
Klzandwa(') and Young v. Ladies Imperial Club, Lim.(•).
The substance is more important than the form and if
there is substantial compliance with the spirit and
substance of the law, we are not prepared to let an unessential defect in form defeat what is otherwise a
proper and valid resolution.
We, however, confine our
(1) rn8 E.R. !073-
(2) [1896] I Ch. 788.
(3) [1926) I Ch. 975·
(4) 61 I.A. 125.
(5) 89 L.J.K.B. 563.
•
1954
The Vit.e-Chan··
tellor, Utl.al
Un.iVlr.sity
and Others.
v.
S. K. Ghosh:
and Others .
. Bo.seJ.
1954
·The Vire-Chancellor, Utkal
Univer!ily
and Others.
v.
S. K. Ghosh
and Others.
890
SUPREME COURT REPORTS
[1954]
remarks to the facts
of this case where there was
actual appearance without objection at meetings pmperly convened and where there was complete unanimity on both occasions.
Whether it would be proper
to reach the same conclusion when there is a dissentient voice we are not prepared
to say.
In our opinion,
the High Court was wrong in holding that the two
resolutions
were
invalid.
Whatever may be thought
about each taken separately, the defects, if any, are,
in our judgment, cured when the two are read together
and regarded as a whole.
We also think the High
Court was wrong on the
second point.
The learned fudges rightly hold that in
a mandamus petition the High Court cannot constitute
itself into a court of appeal from the authority against
which
the appeal is sought, but having said that they
went on to do just what they said they could not. The
learned r udges appeared to consider that
it is not
enough to have facts established from which a leakage
can legitimately be inferred by reasonable minds but
that there must in addition be proof of its quantum
and amplitude though they do not indicate what the
yard-stick
of measurement should be. That is a proposition to which we are not able to assent.
We are not prepared to perpetrate the error into
which the learned High Court Judges permitted themselves to be led and examine the facts for ourselves as
a court
of appeal but
in view of the strictures the
High Court has made on the Vice-Chancellor and the
syndicate we are compelled to observe that we do not
feel they are justified.
The question was one of urgency
and
the
Vice-Chancellor
and
the members of the
syndicate were well within their rights in exercising
their discretion in the way they did.
It may be that
the matter
could have been handled in some other
way, as, for example,
in the manner the learned
r udges indicate, but it is not the function of courts of
law to substitute their wisdom and discretion for that
of
the
persons
to whose judgment the matter in
question
is
entrusted by the Law.
The University
authorities acted honestly as reasonable and responsible
S.C.R.
SUPREME COURT REPORTS
891
men
confronted
with
an
urgent
situation
are
entitled to act.
They had experts of their own on their
body.
They examined others "\Vho in their opinion
might throw light on the incident.
They themselves
compared tl:ie two papers and, after a deliberation of
some six hours, arrived at an unanimous decision and
then they reviewed the matter afresh at a second
meeting with
the assistance of one of their number
who
was
not
present
on
the first occasion. It is
inaccurate
to describe that as
haste and unjust to
characterise their
action as unreasonable and lacbng
due care.
This is decidedly not the sort of case in
which a mandamus ought
to issue. We accordingly set
aside the order of the High Court.
We now come to the undertaking given on behalf of
the Vice-Chancellor.
As we
have observed, the syndicate
reached the conclusion that there had been a
leakage and so cancelled the examinations and ordered fresh ones.
Had the High Court not stepped in,
those examinations
would have be_en held nearly two
and a half years ago and it is possible that
all the
students who were successful then would have passed
again, or at any rate many of them would. But because
of the High Court's order the examinations could not
be
held
and the University was virtually directed to
regard the examinations
already held and the results
already declared as good.
The result has been that the
students who passed have been studying and sitting
for examinations
in
the higher classes for some two
and a half years.
If the status quo which would result
from our setting aside of the High Court's order were
to be resumed it would mean that those students
would be put back to where they were two and a half
years ago and would be compelled to do the courses
which they have already covered all over again.
In
order to avoid such injustice we were told at the outset by
counsel on behalf of the Vice-Chancellor that
the University
did not want to penalise them and so
gave us the following
undertaking drafted by the·
appellants' counsel :
"The students who are declared to have passed'
the first M. B. B. S. Examination of the Utkal University1954
T h1 Jiice-C'Aan.
ce!lnr, l!tkal
University
and Ot,.ers.
v.
S.K. Gho;h
and Otrters,
Bose].
1954
·r ht V ict-Chanrellor, Utkal
Clniversity
and Others.
v.
S. K. Ghosh
and Others.
Bose].
1954
_7anuary 20.
892
SUPREME COURT REPORTS
[1954]
held in April, 1951, shall be deemed
passed that examination and shall not
appear again in Anatomy."
to have duly
be required to
The appeal is allowed. The High Court's order is set
aside
and the petition for mandamus filed before it is
dismissed, but without
costs.
There will be no order
about costs in this "court either.
Appeal allowed.
Agent for the appellants: Raiinder Narain.
Agent for the respondents Nos. 1-8, 10-16, 18-23
and 25-34: S. P. Varma.
JAGANNATH
v.
JASW ANT SINGH AND OTHERS.
[MEHR
CHAND
MAHAJAN. C.J.,
MUKHERJEA,
S. R. DAs,
VIVIAN
BosE and GHULAM
HASAN. JJ.j
Representation
of the People Act (XL/II of 1951), s. 82Election petition-Non-compliance with the provisions
of s. 82Proper party omitted frorn the list of respondents-Defect u1hcther
fatal.
Held, (i) that non-con1pliance with the provisions
of s. 82
of the Representation of the
People Ac_t,
1951
(XLIII of 1951),
and the omission of a proper party from the list of respondents is
not fatal and the tribunal is entitled to deal \Vith
the tnatter in
accordance with the rules of the Code of Civil Procedure which
have been ma<le expressly applicable;
.
(ii) that it is one of
the rules of
construction that a provision similar to the
one in s. 82 is not mandatory unless
noncompliance \Vith it is made penal.
Order XXXIV, r. l, of the Code of Civil Procedure, referred
to.
General
principles
governing the
decision of election petitions discussed.
C1v1L APPELLATE
JuRISDICTJON :
Civil
Appeal No.
100 of 1953.
Appeal by
special leave from the Judgment and
Order, dated the 27th November, 1952, of the High
Court of Judicature, Punjab,
Circuit
Bench at Delhi
in Civil
Writ
No. 65-D of 1952 arising out of the